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Clark v. Clark

Court of Appeals of Arkansas, Division II

November 15, 2017

KIMBERLY AND JEREMY CLARK APPELLANTS
v.
GEORGE AND DAWN CLARK APPELLEES

         APPEAL FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26PR-15-27] HONORABLE STEPHEN CHOATE, JUDGE

          The Lancaster Law Firm, PLLC, by: Clinton W. Lancaster, for appellants.

          Lawrence C. Honeycutt, for appellees.

          RAYMOND R. ABRAMSON, Judge

         Kimberly and Jeremy Clark appeal the Garland County Circuit Court order dismissing their motion to set aside the adoption decree of their daughter E.C. in favor of George and Dawn Clark. On appeal, Kimberly and Jeremy argue that the circuit court erred in denying their motion because they did not receive notice of the adoption petition in violation of their due-process rights. We agree and reverse and remand.

         E.C. was born on February 15, 2006, to Kimberly and Jeremy. George and Dawn are Jeremy's parents. On January 14, 2015, George and Dawn filed a petition for adoption of E.C. in the Garland County Circuit Court. In the petition, they alleged that they were E.C.'s legal guardians and that they did not know the whereabouts of Kimberly and Jeremy. They attached the order appointing them guardians of E.C., which had been entered on July 19, 2012. They further alleged that Kimberly and Jeremy had not had contact with E.C. since December 2012 and that Kimberly and Jeremy's consent to the adoption was not required under Arkansas Code Annotated section 9-9-207 (Repl. 2015).[1] Because they did not know the whereabouts of Kimberly and Jeremy, George and Dawn published notice of the adoption petition in the Sentinel Record on March 14 and March 21, 2015. They did not otherwise serve Kimberly and Jeremy with the petition.

         On March 31, 2015, the court held a hearing. Kimberly and Jeremy did not appear. George testified that E.C. was removed from Kimberly and Jeremy's custody in April 2012 in a dependency-neglect proceeding and that he intervened in that proceeding to obtain a guardianship of E.C. Dawn testified that she had not seen Kimberly and Jeremy in one or two years. The court took judicial notice of the dependency-neglect case and the guardianship order, and the court orally granted the adoption.

         On April 1, 2015, the circuit court entered a final adoption decree. In the decree, the court noted that Kimberly and Jeremy did not appear for the final hearing. The court further found that their consent to the adoption was not required pursuant to section 9-9-207.

         On December 13, 2016, Kimberly and Jeremy filed a motion to set aside the adoption decree. They asserted that the decree violated their due-process rights because they did not receive notice of the petition. They further alleged that they had frequent communication with George, Dawn, and E.C. and that they had not waived consent to the adoption.

         On January 13, 2017, George and Dawn filed a motion to dismiss Kimberly and Jeremy's motion to set aside the adoption. They asserted that Kimberly and Jeremy's motion was barred by the statute of limitations as set forth in Arkansas Code Annotated section 9-9-216(b).

         Also on January 13, 2017, George and Dawn filed a response to Kimberly and Jeremy's motion to set aside the adoption. In the response, they stated that they had originally obtained temporary custody of E.C. through the dependency-neglect proceedings on April 19, 2012, and that on April 27, 2013, the Arkansas Department of Human Services ("DHS") provided Kimberly and Jeremy a case plan that stated, "Relative guardianship will be the concurrent permanency plan for [E.C.] if Jeremy and Kimberly are unable to complete the requirements of the case plan to the satisfaction of the Court." They asserted that Kimberly and Jeremy did not comply with the case plan. They further pointed out that the guardianship order provided that the guardianship could not be set aside without notice to, and the consent of, DHS. On January 18, 2017, the court entered an order granting George and Dawn's motion to dismiss Kimberly and Jeremy's motion to set aside the adoption.

         On January 19, 2017, Kimberly and Jeremy filed a motion to set aside the court's January 18, 2017 order. They complained that they did not have an opportunity to respond to George and Dawn's motion to dismiss their motion to set aside the adoption. The court did not enter a written order, and the motion was deemed denied on February 18, 2017. Accordingly, on March 20, 2017, Kimberly and Jeremy filed their notice of appeal.[2]

         We review probate proceedings de novo, but we will not reverse the decision of the probate court unless it is clearly erroneous. Dillard v. Nix, 345 Ark. 215, 45 S.W.3d 359 (2001); Blunt v. Cartwright, 342 Ark. 662, 30 S.W.3d 737 (2000). When reviewing the proceedings, we give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Id. Similarly, we review issues of statutory construction de novo, as it is for this court to determine what a statute means. Burch v. Griffe, 342 Ark. 559, 29 S.W.3d 722 (2000). Thus, we are not bound by the circuit court's construction; however, in the absence of a showing that the circuit court erred, its interpretation will be accepted as correct on appeal. Id.

         Kimberly and Jeremy argue that the circuit court erred by not setting aside the adoption decree because they failed to receive notice of the adoption petition in violation of their due-process rights.[3] They recognize that Arkansas Code Annotated section 9-9-216(b) provides that, upon the expiration of one year after the entry of an adoption decree, the decree cannot be questioned for failure to give the required notice. They further concede that they filed their motion to set aside the petition more than a year after its entry. However, they assert that the adoption should be set aside because they did not receive the required ...


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